The national courts in each case made a reference to the CJEU in this matter, questioning whether the refusal to grant paid leave was contrary to the Pregnant Workers' Directive ("PWD") or whether it constitutes sex or disability discrimination, contrary to the Equal Treatment Directive ("ETD") and the Employment Equality Framework Directive. The disability discrimination aspect of the claims arose from the women's inability to carry a child by natural means, which circumstance had forced the surrogacy arrangements in each case.
On 26 September 2013, the cases were initially assessed independently (but on the same day) by two Advocate-Generals. The opinion in each case was diametrically opposite to the other: Advocate General Kokott (in C-D v S-T C-167/12) suggested that intended mothers were entitled to paid leave, whilst Advocate General Wahl (in Z v A Government Department and the Board of Management of a Community School C-363/12) opined that intended mothers were not entitled to any paid leave.
However, both Advocate-Generals agreed in relation to the sex and pregnancy discrimination claims. Refusal to grant maternity leave to an intended mother did not amount to pregnancy discrimination on the basis that the intended mother has not been pregnant and she has not suffered a detriment as a result of taking maternity leave. Furthermore, there was no sex discrimination in these circumstances on the basis that she had not suffered a detriment given that her male colleagues would have been treated in the same way under EU law in relation to a child born through a surrogacy arrangement.
Advocate-General Kokott's opinion in C-D v S-T resonates, for me, as a sensible approach to this sensitive matter: an intended mother is entitled to paid maternity leave under the PWD, regardless of whether she intends to breastfeed the child. In this particular case, the intended mother (whose partner's sperm, but not her egg, had been used to produce the child) began nursing and breastfeeding the baby within an hour of birth. She continued to breastfeed the child for three months. Advocate-General Kokott suggested that an intended mother in a surrogacy arrangement was entitled to the two weeks' compulsory maternity leave under the PWD. Thereafter, any maternity leave taken by the surrogate mother should be deducted from the intended mother's 14 week entitlement under the PWD. This method would avoid doubling maternity entitlements in relation to one child (save for the two week compulsory period). Notably, Advocate-General Kokott stated that "This 'special relationship between a woman and her child over the period which follows pregnancy and childbirth’ warrants protection in the case of an intended mother in the same way as it does in the case of a biological mother."
However, in Z v A Government Department and the Board of Management of a Community School Advocate-General Wahl firmly denied any right to maternity leave for an intended mother in a surrogacy arrangement. This opinion was based on the argument that the aim of the PWD is to safeguard the health and safety of a woman in the period before she gives birth. It was also suggested that whilst maternity leave recognises the need for a woman and her child to bond, this "can only be understood in context; as a logical corollary of childbirth (and breastfeeding)." In my view, this is a surprising statement that goes against the grain when we consider the existence of adoption leave: what, then, is the rationale behind adoption leave if not primarily to afford parents and adoptive children the opportunity to form a close relationship? Does such rationale not apply equally to the relationship between new parents who have had a child through a surrogacy arrangement, as suggested by Advocate-General Kokott in C-D v S-T?
The conflicting approaches of the Advocate-Generals have now been resolved by the CJEU. As we had hoped, the CJEU has helpfully issued one joint judgment in respect of these two cases. We therefore now have clarification on the position of EU law in this matter. In short, the CJEU's judgment is in line with the Advocate-General's opinion in Z v A Government Department and the Board of Management of a Community School. The CJEU held that:
- "EU law does not provide for commissioning mothers to be entitled to paid leave equivalent to maternity leave or adoption leave";
- "a refusal to grant maternity leave to a commissioning mother does not constitute discrimination on grounds of sex"; and
- "a refusal to grant paid leave equivalent to adoption leave to a commissioning mother is outside the scope of the Equal Treatment Directive".
I have to admit that I am disappointed by the CJEU's judgment.
As EU law currently stands, I can understand the reasoning behind the Court's position in relation to the discrimination claims. The CJEU found that, by being refused maternity leave, the intended mother is not discriminated against on grounds of her sex under the ETD on the basis that the intended father would likewise be denied paternity leave (although it is worth nothing that, in the context of UK law, there are circumstances in which the father would be entitled to paternity leave as I suggest below). The refusal to grant adoption leave was found to be outwith the scope of the ETD, as Member States are free to decide whether to grant adoption leave. Likewise, the disability discrimination claims were rejected on the basis that an intended mother's inability to carry a child does not hinder her ability to participate in professional life and advance in employment and does not therefore fall within the concept of "disability" under the ETD.
However, the rejection of the pregnancy discrimination claim under the PWD is more difficult to comprehend, particularly in the case of C-D v S-T where the intended mother was breastfeeding the child. As the intended mother has never been pregnant and has not given birth to a child, the CJEU found that she did not fall within the scope of the PWD, even in circumstances when she breastfeeds the baby after birth. This is surprising, given that Article 2 of the PWD states that a worker who is breastfeeding must be entitled to at least 14 weeks' maternity leave under national law. Furthermore, the pregnancy discrimination claim was rejected on the basis that protection of the relationship between a mother and child is only an objective of the PWD where the mother concerned has also had a period of pregnancy and childbirth. This appears to be suggesting that a mother who does not give birth to her child (even where that child is their biological child) should not be afforded the opportunity to create and nurture that special mother-child bond.
This is the most disappointing part of the judgment for me: namely the failure to recognise an intended mother's need to bond with her child. Maternity leave in the UK is not solely based on a medical need to recuperate and, in my view crucially, takes account of the basic human need for a woman to forge a loving and trusting relationship with her new dependant. We only have to consider the very existence of adoption leave for it to be clear that paid leave to look after a new addition to your family is not for only medical purposes.
Furthermore this judgment sits uncomfortably with the reality that, in the UK, adoptive mothers who do not have any biological connection to the adoptive child now benefit (quite rightly) from the same entitlement to paid leave as biological birth mothers. This is in stark contrast to the rights of parents who, through IVF treatment, have a child who is naturally their own yet the biological mother was unable to carry that child and so they sought help from a surrogate mother (as was the situation in Z v A Government Department and the Board of Management of a Community School. The CJEU's decision means that such biological mothers are not be entitled to any paid leave under EU law. Conversely, the biological father in this situation would be entitled to paternity leave in the UK given that the criteria for paternity leave is that the employee must be either the child's father (which would be the case where his sperm had been used to produce the child) or be in a special relationship with the child's mother (which would not be relevant in a surrogacy situation given that the surrogate mother will be the child's legal mother, regardless of the child's biological ties). Does this not fit the very definition of direct sex discrimination? The UK legislation therefore appears to run contrary to the CJEU's suggestion that no sex discrimination occurred because an intended father would likewise be denied paternity leave. I suspect the UK national courts may find this aspect of the CJEU's judgment difficult to reconcile with our national paternity leave legislation.
In my view, the CJEU's decision serves to reinforce an unnecessary anomaly in the context of the existing UK family friendly legislation. The CJEU did, at least, highlight that the PWD lays down only minimum requirements for protection of new mothers and "Member States are free to apply more favourable rules for the benefit of such mothers". It remains to be seen whether the Government will reconsider UK family friendly legislation in light of the CJEU's findings and opt to legislate to protect children born of surrogate mothers by allowing the intended parents of such children to benefit from the same paid leave rights as both biological and adoptive mothers and fathers currently enjoy.